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Two years ago, I blogged about a decision in a case called Stulman v. John Dory LLC which, as far as I knew at the time, was the sole decision by a New York court in which a dissenting member of a limited liability company (LLC) sought to block an allegedly unlawful freeze-out merger. Since Stulman, there was one other reported New York case that I blogged about last year involving an LLC freeze-out merger, Alf Naman Real Estate Advisors, LLC v.
Recently I came across a third, new decision in an LLC merger case more akin to Stulman, in which Manhattan Commercial Division Justice Melvin L.
The seeds of the current litigation were planted in late 2011, when KFS made a capital call allegedly in violation of the operating  agreement and without any legitimate business purpose.
In August 2012, New Wall filed a petition against the minority members for an appraisal of the fair value of their interests (read here). The appraisal proceeding and the injunction action are not duplicative and the former therefore does not preclude the latter (Decision pp. The plaintiffs’ claims other than fraud are properly pleaded as individual, direct claims and are not derivative as contended by KFS (Decision pp. Do Stulman and SBE Wall Properly Conceive the Exceptions to the Exclusive Appraisal Remedy in LLC Mergers? When the LLC Law was enacted in 1994, legislators borrowed almost verbatim the provision in § 121-1102(d) of New York’s Revised Limited Partnership Act (RLPA) establishing appraisal as the exclusive remedy for a limited partner who dissents from a merger, subject to certain narrow exceptions based on noncompliance with the partnership agreement or with notice and voting requirements.
A member of a domestic limited liability company who has a right under this chapter to demand payment for his or her membership interest shall not have any right at law or in equity under this chapter to attack the validity of the merger or consolidation or to have the merger or consolidation set aside or rescinded, except in an action or contest with respect to compliance with the provisions of the operating agreement or [the notice and voting provisions in] subdivision (c) of this section. Fast forward to 2008, when New York’s highest court construed RLPA § 121-1102(d) in Appleton Acquisition, LLC v.


The Appleton opinion also contrasted RLPA § 121-1102(d) with the exception to the exclusive appraisal remedy found in the analogous dissenting shareholder provision in § 623(k) of the Business Corporation Law (BCL).
Indeed, this appears to be the only reason the courts in Stulman and SBE Wall assessed the adequacy of the complaints’ allegations of fraud or other illegality in determining whether to apply the exclusive appraisal remedy.
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If this doesn't say "you like this" below then click the LIKE button if you thought this was good information! Schweitzer examined a disputed LLC freeze-out merger involving a realty management company. KFS also allegedly failed to provide plaintiffs with documentation required by the operating agreement in connection with the capital call. In November 2012, the minority members started a separate action with a complaint attacking the merger’s bona fides and seeking to enjoin it.
Plaintiffs also argued that the complaint adequately alleged grounds to conclude that the merger was the product of a fraudulent or unlawful scheme to deprive plaintiffs of the value of their interest in Wall. National Housing Partnership, 10 NY3d 250 (2008). The court in Appleton held that § 121-1102(d) bars a limited partner from bringing an action to invalidate a merger or even seeking damages based on allegations of fraudulent or illegal acts by the managing general partner, and that the statutory appraisal proceeding is the exclusive remedy for such claims.
Mahler’s litigation practice concentrates on corporate dissolution proceedings, contested stock valuations, derivative actions and other disputes among co-owners of closely held business entities, including limited liability companies, partnerships and business corporations. This is running about 2-3 degrees less than what the weather models were forecasting for today.


In 2009, as part of a prior litigation settlement, the plaintiffs agreed to appoint KFS as Wall’s sole manager. The minority members subsequently secured an order from Justice Schweitzer (read here) staying the appraisal proceeding pending determination of their injunction action. Keep in mind, just as LLC Law § 1002(g) is a clone of RLPA § 121-1102(d), so too LLC Law § 1005(b) is a clone of RLPA § 121-1105(b). I offer the above observations as food for thought only, with the hope that it might spark some interest or comments from other practitioners. Get more business exposure by partnering with us by checking out one of our monthly or annual plans. Third, KFS argued that the complaint failed to allege the essential elements of a claim for fraud.
We are pretty sure that the favored CAD areas will get a rude awakening in the morning with widespread freezing conditions. We COULD see 3-4 hours of sub-freezing temperatures in about 60-75% of North Carolina tomorrow morning and this COULD even spill into the Upstate of SC depending upon wind speeds. We expect the winds to subside to calm conditions in many areas with a 1030mb+ high pressure area sitting directly overhead late tonight into Wednesday morning.



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